EXHIBIT 10(b)(xxxii)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made by and between Anadarko
Petroleum Corporation, a Delaware corporation (the "Company"), and Xxxxx X.
Xxxxxxx (the "Executive"), as of February 5, 2004.
WITNESSETH:
WHEREAS, the Company is desirous of employing the Executive in an
executive capacity on the terms and conditions, and for the consideration,
hereinafter set forth, and the Executive is desirous of being employed by the
Company on such terms and conditions and for such consideration;
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, the Company and the Executive agree
as follows:
ARTICLE 1
EMPLOYMENT AND DUTIES
1.1 Employment; Effective Date. The Company agrees to employ the
Executive and the Executive agrees to be employed by the Company, beginning as
of December 3, 2003 (the "Effective Date") and continuing for the period of time
set forth in Article 2 of this Agreement, subject to the terms and conditions of
this Agreement.
1.2 Positions. Effective as of the Effective Date, the Company shall
cause the Executive to be appointed as President and Chief Executive Officer of
the Company. The Company shall maintain the Executive in such positions, and/or
in such other positions as the parties mutually may agree, for the full term of
the Executive's employment hereunder. In addition, effective as of the Effective
Date, the Company shall cause the Executive to be appointed as a member of the
Board of Directors of the Company (the "Board of Directors"), and shall nominate
the Executive for election and re-election to the Board of Directors as and when
his term expires while he remains employed under this Agreement.
1.3 Duties and Services. The Executive agrees to serve in the
position(s) referred to in paragraph 1.2 and to perform diligently and to the
best of his abilities the duties and services appertaining to such offices, as
well as such additional duties and services appropriate to such offices upon
which the parties mutually may agree from time to time. The Executive's
employment shall also be subject to the policies maintained and established by
the Company, as the same may be amended from time to time.
1.4 Other Interests. The Executive agrees, during the period of his
employment by the Company, to devote his primary business time, energy and best
efforts to the business and affairs of the Company and its affiliates and not to
engage, directly or indirectly, in any other business or businesses, whether or
not similar to that of the Company, except with the consent of the Board of
Directors. The foregoing notwithstanding, the parties recognize and agree that
the Executive may engage in passive personal investments and other civic and
charitable activities
that do not conflict with the business and affairs of the Company or interfere
with the Executive's performance of his duties hereunder without the necessity
of obtaining the consent of the Board of Directors. Notwithstanding the
foregoing, the Company acknowledges that the Executive may continue to serve as
a member of board of directors of the Federal Reserve Bank of Dallas, Houston
Branch, Fluor Corporation, and Temple-Inland Inc., and the Executive agrees that
if the Board of Directors determines that continued service with one or more of
these entities is inconsistent with the Executive's duties hereunder and gives
written notice of such to the Executive, the Executive will resign from such
position(s).
1.5 Duty of Loyalty. The Executive acknowledges and agrees that the
Executive owes a fiduciary duty of loyalty, fidelity, and allegiance to use his
reasonable best efforts to act at all times in the best interests of the
Company. In keeping with these duties, the Executive shall make full disclosure
to the Company of all business opportunities pertaining to the Company's
business and shall not appropriate for the Executive's own benefit business
opportunities concerning the subject matter of the fiduciary relationship.
1.6 Stock Ownership Requirement. The Executive shall generally be
expected to maintain ownership of shares of the Company's common stock
("Shares") having a value equal to five times his annual base salary as in
effect from time to time. Unvested shares of restricted stock (including without
limitation the Initial Restricted Stock, as defined in paragraph 3.5 below) will
be credited towards this requirement. The Executive shall be required to obtain
the prior approval of the Board of Directors before selling Shares, if the sale
would reduce his ownership below this required level, except to the extent the
sale is necessary in order to cover the exercise price for exercise of options
to acquire Shares ("Options") or taxes due on such exercise or on the vesting of
restricted Shares or other awards based on Shares.
ARTICLE 2
TERM AND TERMINATION OF EMPLOYMENT
2.1 Term. Unless sooner terminated pursuant to other provisions hereof,
the Company agrees to employ the Executive for the period beginning on the
Effective Date and ending on the third anniversary of the Effective Date. Except
as otherwise provided in paragraph 2.4, beginning with the first anniversary of
the Effective Date, said term of employment shall be extended automatically for
an additional successive one-year period as of each anniversary date of the
Effective Date that occurs while this Agreement is in effect; provided, however,
that if, at any time prior to any such anniversary date of the Effective Date,
either party shall give written notice to the other that no such automatic
extension shall occur, then the Executive's employment shall terminate on the
last day of the two-year period beginning on the anniversary date of the
Effective Date that next occurs after such notice is given.
2.2 Company's Right to Terminate. Notwithstanding the provisions of
paragraph 2.1, the Company shall have the right to terminate the Executive's
employment under this Agreement at any time before the expiration of the term
provided for in paragraph 2.1, for any of the following reasons:
(i) upon the Executive's death;
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(ii) upon the Executive's becoming incapacitated by accident,
sickness or other circumstance which renders him mentally or physically
incapable of performing the duties and services required of him
hereunder on a full-time basis with reasonable accommodation for a
period of at least 120 consecutive days or for a period of 180 business
days during any twelve-month period ("Disability");
(iii) for "Cause," which for purposes of this Agreement shall
mean (A) the Executive's gross negligence, gross neglect or willful
misconduct in the performance of the duties required of him hereunder,
(B) the Executive's commission of a felony that is expected to result
in a material adverse effect on the Company, or (C) the Executive's
material breach of any material provision of this Agreement; or
(iv) for any other reason whatsoever, in the sole discretion
of the Board of Directors.
A termination of the Executive's employment by the Company pursuant to clause
(iv) above is referred to as a "Without Cause Termination." The termination of
the Executive's employment by the Company pursuant to subclause (A) or (C) of
clause (iii) above shall not be deemed to be for Cause, and will be treated as a
Without Cause Termination, unless the Company has first provided written notice
to the Executive specifically identifying the conduct on which the termination
is based, and the Executive has failed to cure such conduct within 10 business
days after such notice is given. Any termination of the Executive's employment
by the Company for Cause shall be effective only upon delivery to the Executive
of a certified copy of a resolution of the Board of Directors, adopted by the
affirmative vote of a majority of the entire membership of the Board of
Directors (excluding the Executive) following a meeting at which the Executive
was given an opportunity to be heard on at least five business days' advance
notice, finding that the Executive was guilty of the conduct constituting Cause,
and specifying the particulars thereof.
2.3 Executive's Right to Terminate. Notwithstanding the provisions of
paragraph 2.1, the Executive shall have the right to terminate his employment
under this Agreement at any time before the expiration of the term provided for
in paragraph 2.1, for any of the following reasons:
(i) for (A) the Company's assignment to the Executive of any
duties inconsistent in any material respect with the positions of
President and Chief Executive Officer, or any other action by the
Company that results in a material diminution of the Executive's
position, duties, or authority, (B) the Company's failure to appoint or
reappoint the Executive to the positions of President and Chief
Executive Officer or to nominate him for election or re-election to the
Board as required by paragraph 1.2, (C) the Company's material breach
of any other material provision of this Agreement; (D) the Company's
requiring the Executive to be based at any office outside the
Woodlands, Texas and Houston, Texas metropolitan areas; or (E) the
Company's giving a notice of nonrenewal of the term of employment
pursuant to paragraph 2.1 before the Executive's attainment of age 55;
provided, however, that, prior to the Executive's termination of
employment under any of clauses (A) through (D) of this paragraph
2.3(i), the Executive must give written notice to the Company of any
such breach, assignment or failure and
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such breach, assignment or failure must remain uncorrected for 10
business days following such written notice; or
(ii) for any other reason whatsoever, in the sole discretion
of the Executive.
A termination of the Executive's employment by the Executive pursuant to clause
(i) above is referred to as a "Good Reason Termination."
2.4 Notice of Termination. If the Company or the Executive desires to
terminate the Executive's employment hereunder at any time prior to expiration
of the term of employment as provided in paragraph 2.1, it or he shall do so by
giving written notice to the other party that it or he has elected to terminate
the Executive's employment hereunder and stating the effective date and reason
for such termination, provided that no such action shall alter or amend any
other provisions hereof or rights arising hereunder, including, without
limitation, the provisions of Article 4 hereof. No further renewals of the term
of employment under this Agreement shall occur pursuant to paragraph 2.1 after
the giving of any such notice.
2.5 Resignations. Notwithstanding any other provision of this
Agreement, upon the termination of the Executive's employment for any reason,
unless otherwise requested by the Board of Directors, he shall immediately
resign from the Board of Directors and from all boards of directors of
subsidiaries and affiliates of the Company of which he may be a member. The
Executive hereby agrees to execute any and all documentation of such
resignations upon request by the Company, but he shall be treated for all
purposes as having so resigned upon termination of his employment, regardless of
when or whether he executes any such documentation.
ARTICLE 3
COMPENSATION AND BENEFITS
3.1 Base Salary. During his employment hereunder, the Executive shall
receive a minimum annual base salary of $1,100,000. The Compensation Committee
of the Board of Directors (the "Compensation Committee") shall review the
Executive's annual base salary on an annual basis and may, in its sole
discretion, increase, but not decrease, the Executive's annual base salary. The
Executive's annual base salary shall be paid in equal installments in accordance
with the Company's standard policy regarding payment of compensation to
executives but no less frequently than monthly.
3.2 Signing Bonus. On January 2, 2004, the Company shall pay the
Executive a signing bonus in the amount of $1,000,000.
3.3 Annual Bonuses. For the 2004 calendar year and subsequent calendar
years ending during his employment hereunder, the Executive shall be eligible to
receive an annual cash bonus under the Company's Annual Incentive Bonus Plan or
a successor plan (the "Bonus Plan"), in an amount determined by the Compensation
Committee, based on performance goals established by the Compensation Committee
in accordance with the terms of the Plan, and with a target (the "Incentive
Target") of not less than 120% of the Executive's annual base salary as in
effect at the beginning of the calendar year, but subject to a maximum annual
cash bonus of 200% of the Incentive Target (that is, 240% of the annual base
salary) for the year.
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3.4 Initial Stock Option. On the Effective Date, the Company shall
grant the Executive a non-qualified Option (the "Initial Option") to purchase
250,000 Shares pursuant to the Company's 1999 Stock Incentive Plan (the "SIP").
The purchase price for each Share subject to the Initial Option shall be equal
to the Fair Market Value (as such term is defined in the SIP) of a Share as of
the Effective Date. Subject to the terms of the SIP and paragraphs 7.2 and 7.3
of this Agreement, the Initial Option shall (i) have a ten-year term, (ii)
become exercisable as to half of the Shares subject thereto on the second
anniversary of the Effective Date, and as to the remaining Shares subject
thereto on the fourth anniversary of the Effective Date, provided in each case
that the Executive remains employed by the Company on such anniversary, and
(iii) have other terms and conditions consistent with the normal terms and
conditions on which the Company grants stock options under the SIP to its senior
executives.
3.5 Initial Restricted Stock Awards. The Company shall grant the
Executive a restricted stock award under the SIP covering 200,000 Shares (the
"Initial Restricted Stock") under the SIP. Subject to the terms of the SIP and
paragraphs 7.2 and 7.3 of this Agreement, the Initial Restricted Stock shall
vest in four equal installments on each of the first four anniversaries of the
Effective Date, provided in each case that the Executive remains employed by the
Company on such anniversary.
3.6 Performance Unit Awards. As soon as reasonably practicable after
the Effective Date, subject to the approval of of the Compensation Committee,
the Executive shall be granted performance units under the SIP (the "Performance
Units" and, together with the Initial Option and the Initial Restricted Stock,
the "Initial Equity Awards") with the terms and conditions set forth below in
this paragraph 3.6 and such other terms and conditions as the Compensation
Committee shall approve. The Performance Units shall represent the opportunity
to receive 80,000 Shares at the target level of performance, and 160,000 Shares
at the maximum level of performance, with half of such amounts to be earned (or
forfeited) based upon the Company's total shareholder return from the Effective
Date through the second anniversary of the Effective Date and the remaining half
to be earned (or forfeited) based upon the Company's total shareholder return
from the Effective Date through the fourth anniversary thereof (these two
periods being referred to as the "Performance Periods"), provided that the
Executive remains employed by the Company through the end of the applicable
Performance Period. If the Executive's employment is terminated in a Without
Cause Termination or a Good Reason Termination before the end of either or both
of the Performance Periods, he shall receive a pro-rata number of Shares, at the
target level, in full settlement of the Performance Units for the incomplete
Performance Period(s). If a Change of Control, as defined in the SIP, occurs
during either or both of the Performance Periods, the Executive shall receive
the maximum number of Shares in full settlement of the Performance Units for the
incomplete Performance Period(s).
3.7 Adjustments to Initial Equity Awards. Notwithstanding the
provisions of paragraphs 3.4, 3.5 and 3.6, if, before the grant of any of the
Initial Equity Awards, there occurs an event that results in an adjustment to
equity awards generally pursuant Section 4(d) of the SIP, the foregoing
requirements for such Initial Equity Awards (including without limitation the
number of Shares subject thereto) shall be adjusted accordingly.
3.8 Subsequent Equity Awards. The Initial Equity Awards are intended to
represent the Executive's equity awards for the initial two years of his
employment by the Company.
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Thereafter during his employment hereunder, the Executive shall be eligible for
equity awards in accordance with normal competitive pay practices, on a basis no
less favorable than the Company's other senior executives, as determined by the
Compensation Committee.
3.9 Special Compensation. In recognition of the loss of his entitlement
to certain payments from his prior employer that would have become payable to
him as of May 1, 2004, the Company will pay the Executive the sum of $5,700,000
(the "Special Payment") on May 1, 2004; provided, that if the Executive's
employment is terminated before May 1, 2004 in a Without Cause Termination or a
Good Reason Termination or as a result of his death or Disability, the Company
shall pay the Special Payment to him or his estate, as applicable, as soon as
practicable thereafter; and provided, further, that in the event the Executive's
employment terminates for any other reason before May 1, 2004, he will forfeit
his right to the Special Payment.
3.10 Special Pension Service Crediting. If the Executive remains
employed by the Company at least until the fifth anniversary of the Effective
Date, the Executive shall be entitled to a special pension benefit from the
Company, such that his aggregate benefits under the Company's Retirement Plan
and Retirement Restoration Plan and any successors thereto (collectively, the
"Pension Plans"), plus the special pension benefit under this paragraph 3.10,
are equal to the aggregate benefits to which he would have been entitled under
the Pension Plans, if his years of service with the Company (but not his age)
were increased by five plus the number of his actual years of service with the
Company in excess of five (if any). The special pension benefit payable under
this paragraph 3.10 shall be paid at the same time or times as the Executive's
benefit under the Pension Plans.
3.11 Other Benefits. During his employment hereunder, the Executive
shall be afforded the following benefits as incidences of his employment:
(i) Business and Entertainment Expenses. Subject to the
Company's standard policies and procedures with respect to expense
reimbursement as applied to its executive employees generally, the
Company shall reimburse the Executive for, or pay on behalf of the
Executive, reasonable and appropriate expenses incurred by the
Executive for business related purposes, including dues and fees to
industry and professional organizations and costs of entertainment and
business development.
(ii) Vacation. During each year of his employment, the
Executive shall be entitled to five weeks of paid vacation in
accordance with the Company's vacation policy, as in effect from time
to time.
(iii) Employee and Executive Benefits Generally. The Executive
shall be eligible for participation in all employee and executive
benefits, including without limitation qualified and supplemental
retirement, savings and deferred compensation plans, medical and life
insurance plans, and other fringe benefits, as in effect from time to
time for the Company's most senior executives.
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ARTICLE 4
PROTECTION OF INFORMATION
4.1 Confidential Information. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliates, and their
respective businesses, which shall have been obtained by the Executive during
the Executive's employment by the Company or any of its affiliates and which
shall not be or become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement) (referred to
herein as "Confidential Information"). Following the termination of the
Executive's employment with the Company for any reason, the Executive shall not,
without the prior written consent of the Company or as may otherwise be required
by law or legal process, communicate or divulge any such Confidential
Information to anyone other than the Company and those designated by it. In no
event shall an asserted violation of the provisions of this paragraph 4.1
constitute a basis for deferring or withholding any amounts otherwise payable to
the Executive under this Agreement. Also, within 14 days after the termination
of Executive's employment for any reason, the Executive shall return to Company
all documents and other tangible items containing Company information which are
in the Executive's possession, custody or control.
4.2 Remedies. The Executive acknowledges that money damages would not
be sufficient remedy for any breach of this Article by the Executive, and the
Company shall be entitled to specific performance and injunctive relief as
remedies for such breach or any threatened breach. Such remedies shall not be
deemed the exclusive remedies for a breach of this Article, but shall be in
addition to all remedies available at law or in equity to the Company, including
the recovery of damages from the Executive and his agents involved in such
breach and remedies available to the Company pursuant to this and other
agreements with the Executive.
ARTICLE 5
NONCOMPETITION AND NONSOLICITATION
5.1 In General. As part of the consideration for the compensation and
benefits to be paid to the Executive hereunder; to protect the trade secrets and
confidential information of the Company and its affiliates that have been and
will in the future be disclosed or entrusted to the Executive, the business good
will of the Company and its affiliates that has been and will in the future be
developed in the Executive, or the business opportunities that have been and
will in the future be disclosed or entrusted to the Executive by the Company and
its affiliates; and as an additional incentive for the Company to enter into
this Agreement, the Company and the Executive agree to the noncompetition and
the nonsolicitation obligations hereunder.
5.2 Noncompetition. The Executive shall not, directly or indirectly for
the Executive or for others, in any geographic area or market where the Company
or any of its affiliates are conducting any business or have during the previous
twelve months conducted such business:
(i) engage in any business competitive with the oil and gas
exploration and production business activity conducted by the Company
and its affiliates (the "Business"); or
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(ii) render advice or services to, or otherwise assist, any
other person, association, or entity who is engaged, directly or
indirectly, in any business competitive with the Business.
For these purposes, if less than 33% of the revenues of any business is derived
from activities competitive with the Business, the first business shall not be
considered to be competitive with the Business. These noncompetition obligations
shall apply (A) during the period that the Executive is employed by the Company,
(B) except as provided in the next sentence, during the one-year period after a
Without Cause Termination or a Good Reason Termination, and (C) if the Executive
terminates his employment with the Company other than in a Good Reason
Termination within two years after the Effective Date, during the one-year
period commencing on the date of the Executive's termination of employment. If
there occurs a Without Cause Termination or a Good Reason Termination and the
Executive provides the Company with a written waiver of his right to receive the
Severance Payment and the Pension Credit provided for as part of his Termination
Benefits (as those terms are defined in paragraph 7.2), then these
noncompetition obligations shall immediately cease to apply.
5.3 Nonsolicitation. The Executive shall not, directly or indirectly
for the Executive or for others, in any geographic area or market where the
Company or any of its affiliates are conducting any business or have during the
previous twelve months conducted such business, induce any employee of the
Company or any of its affiliates to terminate his or her employment with the
Company or such affiliates, or hire or assist in the hiring of any such employee
by any person, association, or entity not affiliated with the Company, unless
such employee has terminated employment with the Company and its affiliates
before such solicitation. These nonsolicitation obligations shall apply during
the period that the Executive is employed by the Company and during the one-year
period commencing on the date of the Executive's termination of employment for
any reason. Notwithstanding the foregoing, the provisions of this paragraph 5.3
shall not restrict the ability of the Company to take actions with respect to
the employment or the termination of employment of any of its employees, or for
the Executive to participate in any such actions in his capacity as an officer
of the Company.
5.4 Enforcement and Remedies. The Executive acknowledges that money
damages would not be sufficient remedy for any breach of this Article by the
Executive, and the Company shall be entitled to specific performance and
injunctive relief as remedies for such breach or any threatened breach. Such
remedies shall not be deemed the exclusive remedies for a breach of this
Article, but shall be in addition to all remedies available at law or in equity
to the Company, including without limitation, the recovery of damages from the
Executive and the Executive's agents involved in such breach and remedies
available to the Company pursuant to this and other agreements with the
Executive.
5.5 Reformation. It is expressly understood and agreed that the Company
and the Executive consider the restrictions contained in this Article to be
reasonable and necessary to protect the proprietary information of the Company.
Nevertheless, if any of the aforesaid restrictions are found by a court having
jurisdiction to be unreasonable, or overly broad as to geographic area or time,
or otherwise unenforceable, the parties intend for the restrictions therein set
forth to be modified by such court so as to be reasonable and enforceable and,
as so modified by the court, to be fully enforced.
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ARTICLE 6
STATEMENTS CONCERNING COMPANY
6.1 In General. The Executive and the Company and its affiliates shall
refrain from any criticisms or disparaging comments about each other or in any
way relating to the Executive's employment or separation from employment;
provided, however, that nothing in this Agreement shall apply to or restrict in
any way the communication of information by the Company or any of its affiliates
or the Executive to any state or federal law enforcement agency or require
notice to the Company or the Executive thereof, and none of the Executive, the
Company or any of its affiliates will be in breach of the covenant contained
above solely by reason of testimony or disclosure which is compelled by
applicable law or regulation or process of law. A violation or threatened
violation of this prohibition may be enjoined by the courts. The rights afforded
under this provision are in addition to any and all rights and remedies
otherwise afforded by law.
ARTICLE 7
EFFECT OF TERMINATION ON COMPENSATION
7.1 By Expiration. If the Executive's employment hereunder shall
terminate upon expiration of the term provided in paragraph 2.1 hereof, then all
compensation and all benefits to the Executive hereunder shall terminate
contemporaneously with termination of his employment except to the extent this
Agreement or any plan or arrangement of the Company provides for vested benefits
or continuation of benefits beyond termination of employment.
7.2 By the Company. If the Executive's employment hereunder shall be
terminated by the Company prior to expiration of the term provided in paragraph
2.1, then, upon such termination, regardless of the reason therefor, all
compensation and benefits to the Executive hereunder shall terminate
contemporaneously with the termination of such employment, except to the extent
this Agreement or any plan or arrangement of the Company provides for vested
benefits or continuation of benefits beyond termination of employment; provided,
however, that in the event of a Without Cause Termination, the Company shall
provide the Executive with the Termination Benefits, except as provided in the
last sentence of paragraph 5.2. For purposes of this Agreement, the term
"Termination Benefits" shall mean the following: (i) the Company shall pay the
Executive, in a single lump sum in cash (the "Severance Payment") within five
business days after the date of the termination of his employment, the base
salary, at the rate then in effect pursuant to paragraph 3.1, that he would have
been entitled to receive if he had remained employed for the unexpired portion
of the term set forth in paragraph 2.1, as in effect immediately before the
Executive's termination (the "Remaining Term"); (ii) the Initial Option and any
other Options that may have been granted to the Executive, to the extent then
outstanding, shall be vested in full upon the Executive's termination of
employment and shall remain exercisable thereafter for the period provided
pursuant to the terms thereof, which period shall not be less than twelve months
(but in no event shall any Option be exercisable after the expiration of its
full original term); (iii) any portion of the Initial Restricted Stock and any
other restricted Shares that may have been granted to the Executive that have
not yet vested shall vest in full upon the Executive's termination of
employment; (iv) within five business days after the date of the Executive's
termination of employment, the Company shall pay to the Executive a lump sum
cash payment equal to the product of the Executive's Incentive Target set forth
in
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paragraph 3.3 multiplied by the Executive's annual base salary at the time of
such termination prorated for the number of months in the performance year of
the Executive's termination of employment that have elapsed prior to such
termination; (v) the Executive shall be treated, for purposes of determining his
years of service for, and his right to receive (but not the timing of his
receipt of) his special pension benefit under paragraph 3.10, as having remained
employed for the Remaining Term (the "Pension Credit"); and (vi) during the
period, if any (but in no event for more than 18 months after the date of the
Executive's termination of employment), that the Executive elects to continue
coverage for himself and any of his eligible dependents under the Company's
group health plans pursuant to the continuation of coverage provisions contained
in Sections 601 through 608 of the Employee Retirement Income Security Act of
1974, as amended, the Executive's premiums for such coverage shall be no greater
than that charged by the Company generally to its active executive employees for
coverage under such plans.
7.3 By Executive. If the Executive's employment hereunder shall be
terminated by the Executive prior to expiration of the term provided in
paragraph 2.1, then, upon such termination, regardless of the reason therefor,
all compensation and benefits to the Executive hereunder shall terminate
contemporaneously with the termination of such employment, except to the extent
this Agreement or any plan or arrangement of the Company provides for vested
benefits or continuation of benefits beyond termination of employment; provided,
however, that if such termination shall be a Good Reason Termination, then the
Company shall provide the Executive with the Termination Benefits, except as
provided in the last sentence of paragraph 5.2.
7.4 No Duty to Mitigate Losses. The Executive shall have no duty to
find new employment following the termination of his employment under
circumstances which require the Company to provide the Termination Benefits to
the Executive pursuant to this Article 7. Any salary or remuneration received by
the Executive from a third party for the providing of personal services (whether
by employment or by functioning as an independent contractor) following the
termination of his employment shall not reduce the Company's obligation (if any)
to provide the Termination Benefits (or the amount of such benefits) pursuant to
the terms of this Article 7. Notwithstanding the preceding sentence, if, and to
the extent that, following the termination of his employment under circumstances
pursuant to which this Article 7 apply, the Executive becomes entitled to
receive benefits from a third party that are comparable to the Termination
Benefits set forth in paragraph 7.2(vi), the Company's obligation to provide
such Termination Benefits to the Executive shall cease.
7.5 Liquidated Damages. In light of the difficulties in estimating the
damages for an early termination of this Agreement, the Company and the
Executive hereby agree that the Termination Benefits, if any, to be received by
the Executive pursuant to this Article 7 shall be received by the Executive as
liquidated damages.
7.6 Incentive and Deferred Compensation. This Agreement governs the
rights and obligations of the Executive and the Company with respect to the
Executive's base salary and certain perquisites of employment. Except as
expressly provided herein, the Executive's rights and obligations both during
the term of his employment and thereafter with respect to stock options,
restricted stock, incentive and deferred compensation, life insurance policies
insuring the life of the Executive, and other benefits under the plans and
programs maintained by the
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Company shall be governed by the separate agreements, plans and other documents
and instruments governing such matters. Without limiting the scope of the
preceding sentence, the Executive acknowledges that he has no right to grants of
stock options or restricted stock either under the stock plans maintained by the
Company or otherwise other than (i) as provided in paragraphs 3.4, 3.5, 3.6, 3.7
and 3.8 hereof or (ii) in the discretion of the Compensation Committee or the
Board of Directors.
ARTICLE 8
MISCELLANEOUS
8.1 Notices. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered, when delivered by facsimile with
printed confirmation, or when mailed by United States registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to the Company: Anadarko Petroleum Corporation
0000 Xxxx Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
Attention: Vice President, General Counsel
If to the Executive to: Xxxxx X. Xxxxxxx
Xxxxxxx, Xxxxx 00000
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices or changes of address shall be
effective only upon receipt.
8.2 Applicable Law. This Agreement is entered into under, and shall be
governed for all purposes by, the laws of the State of Texas.
8.3 No Waiver. No failure by either party hereto at any time to give
notice of any breach by the other party of, or to require compliance with, any
condition or provision of this Agreement shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time, except as specifically provided in the last sentence of paragraph 5.2.
8.4 Severability. If a court of competent jurisdiction determines that
any provision of this Agreement is invalid or unenforceable, then the invalidity
or unenforceability of that provision shall not affect the validity or
enforceability of any other provision of this Agreement, and all other
provisions shall remain in full force and effect.
8.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same Agreement.
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8.6 Withholding of Taxes and Other Employee Deductions. The Company may
withhold from any benefits and payments made pursuant to this Agreement all
federal, state, city and other taxes as may be required pursuant to any law or
governmental regulation or ruling and all other normal employee deductions made
with respect to the Company's employees generally.
8.7 Headings. The paragraph headings have been inserted for purposes of
convenience and shall not be used for interpretive purposes.
8.8 Gender and Plurals. Wherever the context so requires, the masculine
gender includes the feminine or neuter, and the singular number includes the
plural and conversely.
8.9 Affiliate. As used in this Agreement, the term "affiliate" shall
mean any entity which owns or controls, is owned or controlled by, or is under
common ownership or control with, the Company.
8.10 Assignment. This Agreement shall be binding upon and inure to the
benefit of the Company and any successor of the Company, by merger or otherwise.
Except as provided in the preceding sentence, this Agreement, and the rights and
obligations of the parties hereunder, are personal and neither this Agreement,
nor any right, benefit, or obligation of either party hereto, shall be subject
to voluntary or involuntary assignment, alienation or transfer, whether by
operation of law or otherwise, without the prior written consent of the other
party.
8.11 Term. Except as provided in paragraphs 8.13 and 8.15 below: (a)
this Agreement has a term co-extensive with the term of employment provided in
paragraph 2.1; (b) termination of this Agreement shall not affect any right or
obligation of any party which is accrued or vested prior to such termination;
and (c) without limiting the scope of the foregoing clause (b), the provisions
of Articles 4, 5, 6 and 7 shall survive any termination of the employment
relationship and/or of this Agreement.
8.12 Entire Agreement. Except as provided in paragraph 8.13 below, the
written benefit plans and programs and agreements referenced in Article 3 or any
signed written agreement contemporaneously or hereafter executed by the Company
and the Executive, this Agreement constitutes the entire agreement of the
parties with regard to the subject matter hereof, and contains all the
covenants, promises, representations, warranties and agreements between the
parties with respect to employment of the Executive by the Company. Without
limiting the scope of the preceding sentence, all prior understandings and
agreements among the parties hereto relating to the subject matter hereof are
hereby null and void and of no further force and effect.
8.13 Change of Control Agreement. As soon as practicable after the
execution of this Agreement, the Company and the Executive shall enter into a
Key Employee Change of Control Agreement (the "Change of Control Agreement"),
which shall be in the Company's standard form thereof except that it shall
incorporate the provisions of paragraphs 3.6, 3.9, 3.10 and 8.15 hereof and the
severance benefits thereunder shall include those described in clauses (ii),
(iii) and (v) of the definition of Termination Benefits contained in paragraph
7.2 hereof. Notwithstanding any other provision of this Agreement, this
Agreement shall terminate and be of no further force or effect upon the
Effective Date of the Change of Control Agreement.
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8.14 Representation By Executive. The Executive hereby represents and
warrants to the Company that, as of the Effective Date and as of the date of
execution of this Agreement, he is not a party to any employment or other
agreement with any third party which would preclude him from accepting
employment with the Company and performing his obligations under this Agreement.
8.15 Indemnification. The Company agrees to indemnify the Executive
with respect to any acts or omissions he may commit during the period during
which he is an officer, director and/or employee of the Company or any affiliate
thereof, and to provide him with coverage under any directors' and officers'
liability insurance policies, in each case on terms not less favorable than
those provided to any of its other directors and officers as in effect from time
to time.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the year and date first above written, to be effective as of the Effective
Date.
ANADARKO PETROLEUM CORPORATION
By:
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Name: Xxxxxxx X. Xxxxx
Title: Vice President, Human Resources
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Xxxxx X. Xxxxxxx
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